The West Virginia Environmental Quality Board (“EQB” or “Board”) has lifted a stay it earlier imposed on the use of an NPDES permit for a surface mine. It is unlikely, though, that the Board’s order will have any immediate effect or will avert potential layoffs.
The stay, issued in the fall of 2010, prohibited the use of a new NPDES permit issued to Patriot Mining which did not impose effluent limits on conductivity, total dissolved solids (“TDS”) or sulfate. The Sierra Club had argued in 2010 that absent limits on these parameters, discharges from the mine would cause violations of the State “narrative” water quality standards. The EQB granted a stay pending resolution of the appeal.
West Virginia’s narrative water quality standards prohibit certain in-stream conditions. The standards are set out at WVCSR §47-2-3.2.e & 3.2.i and provide that:
3.2.e. Materials in concentrations which are harmful, hazardous, or toxic to man, animal or aquatic life;
3.2.i. Any other condition, including radiological exposure, which adversely alters the integrity of the waters of the State including wetlands; no significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems shall be allowed.
Historically, the West Virginia Department of Environmental Protection (“WVDEP”) has used a biologic index known as the West Virginia Stream Condition Index (“WVSCI”) as the primary tool for determining whether waterbodies met the narrative standards. The WVSCI is used to compare the numbers, types and proportions of so-called pollution-intolerant aquatic insects (measured at the “family” level) in undisturbed “reference” streams with the populations in disturbed streams. At some point, a difference in scores between a disturbed site and a reference site is considered sufficient to find that a disturbed stream is “impaired” or not meeting the narrative standard.
WVDEP does not have numeric criteria for conductivity, TDS or sulfate. It has also evaluated the correlation between each parameter and WVSCI scores and determined that there is a poor correlation between them. Because of that, WVDEP does not believe it can adopt a reasonable numeric standard on these parameters which would not be greatly over- or under-protective of WVSCI scores.
The Sierra Club, however, claimed in the appeal that when insect populations are evaluated at the “genus” level, rather than the “family” level used in the WVSCI, there are clearer correlations between the insect populations found and the levels of conductivity, TDS and sulfate. It contended that significant impacts to those populations occur at conductivity = 300 μS/cm, and sulfate = 50 mg/l, and argued that these levels should serve as in-stream aquatic life criteria used to impose effluent limits. Without significant dilution or expensive treatment, such as reverse osmosis, however, these standards are generally considered unachievable by most surface mines. The Sierra Club’sexperts suggested that there was not necessarily a causal link between conductivity and TDS on the one hand and insect impacts on the other, but that unspecified individual ions comprising the conductivity and TDS were likely culprits. Its experts also suggested that the WVSCI was not as precise a test as a genus-level insect index and should, therefore, not be used.
The EQB generally agreed and in March 2011 issued an order requiring that WVDEP impose effluent limits on each of the three parameters. Significantly, however, it did not determine or suggest that the threshold numbers advocated by the Sierra Club were appropriate. The EQB also ruled that WVDEP was obligated to impose limits on manganese and selenium, and to do a further analysis whether arsenic limits were necessary.
WVDEP and Patriot Mining appealed the order with respect to conductivity/TDS/sulfate. In an order dated September 20, 2011, the Circuit Court of Kanawha County ruled that the EQB had not adequately explained the legal bases for its order; that WVDEP was entitled to deference in its interpretation of the narrative standards; and that the Board had failed to discuss the role of the WVSCI in measuring compliance with the narrative standard. The Court remanded the matter to the EQB.
On remand, Patriot Mining moved to dissolve the stay, arguing that there was no summarizing requirement to impose limits on conductivity/TDS and sulfate; that the Sierra Club was unlikely to prevail on remand; and that Patriot and its employees would suffer real harm while there would be little impact to the receiving stream, which already had high levels of the three parameters which would not increase appreciably with the new mine. By order of November 10, 2011, the EQB dissolved the stay, but its order did little to provide real help to Patriot.
The Board’s dissolution order determined that on the balance of equities the stay should be dissolved because there was little evidence that the mine would contribute to any substantial impact on the insect population or to the levels of the three parameters in the receiving stream. However, the Board also stated that the Sierra Club was likely to prevail on the merits on remand—a fact which suggests that it may again require WVDEP to impose effluent limits on conductivity/TDS/sulfate that cannot be obtained without techniques so expensive as to destroy the economics of the operation.
This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.